Down but not out: why Giles leaves forfeiture by wrongdoing still standing.

• Author: McAllister, Marc

[The] detective's Holy Trinity ... states that three things solve crimes:

Physical evidence.

Witnesses.

Confessions.

Without one of the first two elements, there is little chance that a detective will find a suspect capable of providing the third. A murder investigation, after all, is an endeavor limited by the very fact that the victim--unlike those who are robbed, raped or seriously assaulted--is no longer in a position to provide much information. (1)

INTRODUCTION I. THE GILES OPINIONS A. Facts B. California Court of Appeal Opinion C. California Supreme Court Opinion D. United States Supreme Court Opinion 1. Majority Opinion 2. First Concurring Opinion--Justice Thomas 3. Second Concurring Opinion--Justice Alito 4. Final Concurring Opinion--Justices Souter and Ginsburg 5. Dissent--Justices Breyer, Stevens, and Kennedy II. WHY GILES WILL BE NARROWLY CONSTRUED III. THE POTENTIAL NARROWING OF GILES A. Evading Giles through Proof of the Requisite Intent 1. Lowering Burden of Proof. 2. Inferring Intent 3. Transferring Intent 4. Shifting Burden of Proof to Party Asserting Confrontation Right 5. Using the Challenged Hearsay to Prove Forfeiture 6. Partial Intent Sufficient B. Broadening the Scope of Non-Testimonial Hearsay CONCLUSION INTRODUCTION

The forfeiture by wrongdoing doctrine ("forfeiture") is an equitable doctrine (2) with deep historical roots. (3)(The forfeiture doctrine prevents an individual accused of criminal activity from invoking legal protections created by his wrongful acts. (4) Being an equitable doctrine, this rule is grounded "in the maxim that no one shall be permitted to take advantage of his own wrong." (5) In two recent cases, Crawford v. Washington (6) and Davis v. Washington, (7) the United States Supreme Court reaffirmed forfeiture as one of two core exceptions to the right of a criminal defendant to confront his accusers. (8) When this exception applies, a criminal defendant may not assert his right to confront an unavailable witness when the defendant has wrongfully procured the witness's absence.

An integral part of the Sixth Amendment, (9) the right of a criminal defendant to confront his accusers is fundamental to our system of justice. (10) While the constitutional right of confrontation has been said to serve various purposes, (11) today it essentially guarantees a criminal defendant the right to cross-examine those who testify against him. (12) Like the forfeiture doctrine, the confrontation right has deep equitable roots. (13) Indeed, a case decided just three years after the Sixth Amendment's adoption described the confrontation right as one "founded on natural justice." (14)

Throughout our nation's history, courts have held that a defendant's right of confrontation must sometimes yield due to forfeiture, (15) effectively admitting an absent witness's statements into evidence despite the lack of opportunity for cross-examination. In certain instances of wrongdoing, forfeiture easily trumps the defendant's confrontation right. For example, when a criminal defendant has bribed or intimidated a witness with the intent of preventing the witness from testifying, the defendant is unable to invoke his right to cross-examine that witness. (16) But unlike the bribery context, where the briber's very actions signal an intent to prevent trial testimony, not all "wrongful acts" that have the effect of preventing a witness from testifying should necessarily trigger the forfeiture exception. For example, a defendant who negligently and unknowingly collides into a witness's automobile the evening before trial, causing her to miss her scheduled testimony, would not forfeit his confrontation right. (17) This is true even though the defendant's negligence is considered "wrongful." Between these extremes, however, is a plethora of wrongdoing that may or may not trigger the forfeiture exception.

Between 2004 and 2008, lower courts struggled (18) to resolve whether the forfeiture exception required wrongdoing specifically intended to prevent testimony against the accused. Being an equitable doctrine, and given the Court's broad endorsements of the doctrine in both Crawford (19) and Davis, (20) many courts erred on the side of evidence admission. (21) With a line of cases on both sides, (22) the Supreme Court in Giles v. California (23) sought to resolve this issue.

In Giles, the defendant argued that his confrontation rights were violated when the court admitted out-of-court statements made by his shooting victim several weeks prior to her death. The victim's challenged statements demonstrated Giles's tendency for violence towards her, thereby casting doubt on his claim of self-defense. (24) Despite Giles's confrontation objection, the trial court admitted the evidence, and Giles was convicted of first-degree murder. (25)

On appeal in a post-Crawford world, (26) the State sought to invoke the forfeiture exception, arguing that the doctrine applies in all cases of misconduct rendering a witness unavailable to testify, regardless of intent, (27) Both the California Court of Appeal (28) and the California Supreme Court endorsed the State's view. (29) In a decision that significantly limited the scope of the forfeiture exception, the United States Supreme Court reversed, ruling that the accused must have intended to silence the would-be witness before forfeiture would apply. (30)

Despite its ruling, the Giles Court was severely divided. Although the Court's primary aim was to apply the forfeiture exception as it at the time of our nation's founding, (31) five of the nine Justices existed ultimately deemed the historical record unable to resolve the particular intent issue, and four expressed concern with the overall case outcome.

Given the flaws inherent in the Giles rule, (32) future courts will likely circumvent Giles to prevent criminals from benefiting by their wrongdoing. Before examining the basis for this claim, Part I of this Article summarizes the facts of Giles, the state court opinions, and the various opinions authored by the Supreme Court Justices. Part II demonstrates why the concerns of the Giles dissenters are valid and will trickle down to post-Giles decisions. With courts now unable to apply the forfeiture doctrine in future cases where the equities demand it but where obvious intent evidence (33) is lacking, Part III examines the two primary methods by which lower courts will avoid Giles's grasp, thereby achieving what many jurists will deem a more equitable result. This Part contends that courts will evade Giles by easing the burden of proving its requisite intent, and by broadening the definition of "non-testimonial," thereby removing the disputed evidence from Crawford' s reach.

1. THE GILES OPINIONS

   1. Facts

      In Giles, the defendant argued his confrontation rights were violated when the court admitted out-of-court statements made by his shooting victim prior to her death. Giles's victim, Brenda Avie, had dated Giles for several years. (34) A few weeks prior to her death, officers investigated a report involving Giles and Avie. (35) According to one of those officers, Stephen Kotsinadelis, the incident began when Giles became angry and accused Avie of having an affair. (36) According to the officer, Giles grabbed Avie by the shirt, lifted her off the floor, and choked her. Giles then allegedly climbed on top of Avie, punched her in the face, and held a knife to Avie while threatening to kill her. (37) Avie's description of these events later formed the core of the forfeiture dispute at trial. (38)

      A few weeks after this event, Giles was at his grandmother's house with his new girlfriend, Tameta Munks. (39) After Munks left, Avie arrived. (40) Family members inside the home heard Giles and Avie speaking to one another outside. (41) A series of gunshots then rang out. (42) Giles's grandmother ran outside and discovered Giles standing near Avie, gun in hand. (43) Giles then fled the scene, and was arrested over two weeks later. (44)

      Upon investigation, police discovered that Avie had been shot six times in the torso. (45) One wound was consistent with her holding up her hand at the time she was shot, and one suggested she was shot while lying on the ground. (46) Police also discovered that Giles's weapon fired one bullet at a time, indicating that Giles had pulled the trigger six times. (47) Finally, police confirmed that Avie was not carrying a weapon at the time of her shooting. (48)

      At trial, Giles admitted the shooting, rendering moot the question of whether his "'wrongdoing" prevented her cross-examination. (49) Having admitted the shooting, Giles placed his eggs in the basket of self-defense. (50) In support of this defense, Giles testified and portrayed Avie as a violent woman. (51) Giles claimed that Avie had shot another man before she met him, and that he bad observed her threaten people with a knife. (52) According to Giles, when Avie arrived at his grandmother's house, Avie threatened to kill him and Munks. (53) At this point, Giles claims to have retrieved a gun stowed under a couch in the garage. (54) According to Giles, Avie charged toward him, and he reacted by firing several shots. (55) Giles claimed his eyes were closed as he was firing the gun, and that he did not intend to kill. (56)

      Over Giles's objection, Officer Kotsinadelis testified regarding the domestic incident prior to Avie's death. (57) The court admitted these statements under a California hearsay exception (a ruling which was permissible at the time under Ohio v. Roberts, but would later not be under Crawford). (58) With Avie's statements significantly undermining Giles's self-defense claim, (59) the jury found Giles guilty of first-degree murder and imposed a sentence of fifty years to life. (60)

   2. California Court of Appeal Opinion

      As Giles awaited initial appeal, the Supreme Court established its new Confrontation Clause jurisprudence in Crawford, holding that an out-of-court...